Goldrange Pty Ltd v Western Australia Planning Commission
[2017] WASC 178
•14 FEBRUARY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GOLDRANGE PTY LTD -v- WESTERN AUSTRALIA PLANNING COMMISSION [2017] WASC 178
CORAM: TOTTLE J
HEARD: 14 FEBRUARY 2017
DELIVERED : 14 FEBRUARY 2017
FILE NO/S: CIV 2133 of 2016
BETWEEN: GOLDRANGE PTY LTD
Plaintiff
AND
WESTERN AUSTRALIA PLANNING COMMISSION
Defendant
Catchwords:
Practice and procedure - Discovery - Application for further and better discovery - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application granted in part
Category: B
Representation:
Counsel:
Plaintiff: Mr P McQueen
Defendant: Ms C A Ide
Solicitors:
Plaintiff: Lavan
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 4] [2014] WASC 33
Hot Holdings v Creasy [2002] 210 CLR 438
Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108
TOTTLE J:
(This judgment was delivered extemporaneously on 14 February 2017 and has been edited from the transcript.)
Introduction
The applicant has applied for an order that the respondent provide further and better discovery of documents. This application is made within the context of an application for judicial review of a decision made by the respondent on 28 June 2016. The decision was to recommend that the Minister of Planning require the City of Wanneroo to modify scheme amendment 150 to the City of Wanneroo District Planning Scheme No 2, to remove certain additional uses for lots 810 and 811 adopted by the City of Wanneroo.
The decision was made by the respondent's Statutory Planning Committee (SPC).
The appellant applies for a writ of certiorari and a writ of prohibition, and for declaratory relief.
The respondent has provided limited discovery pursuant to consent orders made by me on 3 August 2016. The applicant says that discovery is inadequate. By a chamber summons filed on 11 November 2016, it seeks further and better discovery of 11 categories of documents and an order that that discovery be verified on affidavit.
Relevant legal context
The provision of discover in an application for judicial review is unusual, but as Owen J (as his Honour then was) said in Perpetual Trustees WA Ltd v City of Joondalup [1999] WASCA 108, there is not an all-embracing ban against ordering discovery in proceedings for a prerogative writ. Owen J observed that the provision of discovery in such proceedings is nonetheless unusual and that discovery is only granted where the applicant can demonstrate compelling circumstances.
Counsel for the applicant points out that Owen J's observations preceded amendments to O 56 of the Rules of the Supreme Court 1971 (WA) that expressly countenance the possibility that the court may order discovery in judicial review proceedings. Counsel for the applicant says that as the respondent has already been ordered to give discovery in these proceedings, the need to demonstrate compelling circumstances, if there is such a need in the light of the amendments that have been made to the Rules of the Supreme Court, has already been addressed.
In my view, the observations made by Owen J in Perpetual Trustees are not remarks that, even prior to the amendment to the Rules of the Supreme Court, were to be applied rigidly as if they were some form of statutory test. The remarks convey that an application for judicial review is concerned with legality of decision-making, rather than the inherent merits of the decisions under review and consequently discovery is unusual.
Although there has been a change in the rules, it remains appropriate to require an applicant to demonstrate why discovery should be ordered in an application for judicial review.
Discovery in the commercial and managed cases lists is carefully managed to ensure that there is proportionality between the provision of discovery and the issues in the case. This underlines the importance of the court being convinced that the interests of justice are such that discovery is required.
Once a decision has been made by the court that discovery is required, then the test to be applied to determine whether an order for further and better discovery should be made is that set out in the judgment of Kenneth Martin J in Fudlovski v JGC Accounting & Financial Services Pty Ltd [No 4] [2014] WASC 33. An applicant for further and better discovery must show that it is fairly certain that the further documents, or class of further documents of which discovery is sought, actually do exist in the possession of the party against whom the application is made, and that the additional documents sought are relevant to the issues arising between the parties to the action. His Honour observed at [15] that:
[t]he relevant threshold … is not measured at the admissibility standard applicable at a trial for a receipt into evidence of the document materials. The interlocutory discovery threshold as to relevance is set at a more expansive 'line of enquiry' level.
In this case, the respondent does not dispute that the documents of which the applicant seeks further discovery exist. Accordingly, the contest between the parties has been confined to whether the documents sought by the applicants are relevant at the 'line of enquiry' level, to the issues between the parties.
Grounds of the application for judicial rates
The relevant grounds are found in the substituted grounds of application. There are nine substituted grounds of which only grounds 7 and 8 are relevant to this application.
Ground 7 reads as follows:
The decision of the respondent's SPC was affected by actual or apprehended bias in that the SPC's decision was based on long-established views of officers of the Department of Planning that were determined to restrict any further development of lots 810 and 811, rather than providing any objective or impartial advice as to the planning for the central precinct.
As explained in the applicant's submissions, ground 7 primarily rests upon the proposition that officers of the department, and perhaps even the department itself, had firm views and closed minds on one particular issue that was relevant in a planning context. That issue is whether any form of retail shop should be permitted on the subject properties (lots 810 and 811) and, accordingly, whether those lots should be permitted discretionary uses under both the agreed structure plan (structure plan 80) and the District Planning Scheme No 2.
The applicants place particular reliance on the observations of Gleeson CJ in Hot Holdings v Creasy [2002] 210 CLR 438, 448 - 449:
Procedural unfairness can occur without any personal fault on the part of the decision-maker, but if the form of unfairness alleged is the actuality or the appearance of disqualifying bias and that is said to result from the conduct or circumstances of a person other than the decision-maker, then the part played by that other person in relation to the decision will be important.
Relying on these observations, the applicant says that the part played by officers of the Department of Planning in the decision of the SPC is important, and that they are entitled to discovery of documents that may illuminate the part played by the departmental officers, and the attitudes of those officers towards the issues that had to be considered for the purposes of the decision made by the SPC.
The second relevant ground of the application for judicial review, ground 8, reads as follows:
The respondent's SPC decision was for an improper purpose, in particular, in being for the purposes of restricting any further development for or additional uses within lots 810 and 811 and to predetermine and seriously prejudice the fair determination of the issues for the State Administrative Tribunal in proceedings numbered DR 92 of 2016.
The proceedings in the State Administrative Tribunal (DR 92 of 2016) were commenced by the applicant to review earlier decisions made by the SPC in relation to proposed amendments to 3 and 4 to the agreed structure plan numbered 80, by which the SPC had recommended that the discretionary use for which the applicant had previously argued, shop retail, should not be allowed.
In the written submissions filed on behalf of the respondent, which were developed by counsel for the respondent in oral submissions, the respondent set out to demonstrate that the documents of which the applicant seeks discovery are of no relevance to either ground 7 or 8.
In relation to ground 7, the respondent says that the decision under challenge is a decision of the SPC and that the documents recording the views of departmental officers are not relevant to the decision made by the SPC.
In relation to ground 8, the respondent says everything that is required for the court to make a determination of ground 8 is already before the court. The documents the respondent says are required are documents recording the existence of the proceedings before the State Administrative Tribunal, the issues in those proceedings, and the documents recording the decision made by the SPC are the basis of its decision. Nothing further is required.
Disposition
There is substantial force in the submissions that have been made by the respondent in relation to ground 8. My view is that the material required to make a determination on the ground is to be found within the papers that have already been filed.
With a degree of reservation, I have reached a different view on ground 7. The applicant has raised two issues; first, whether there is actual or apprehended bias on the part of departmental officers; and, second, whether that bias has affected the decision-making of the SPC.
These issues provide a basis for the provision of further discovery by the respondent and, to paraphrase Owen J in Perpetual Trustees v The City of Joondalup, it is necessary for discovery to be given to enable that issue to be explored properly. Thus, there are compelling circumstances why discovery should be given.
The ambit of the discovery to be given is another matter.
Ultimately, counsel for the applicant identified five categories of documents. I understand these categories to be essentially a distillation of the 11 categories of documents that appeared in the minute of proposed orders attached to the chamber summons on 11 November 2016.
The five categories of documents are a follows.
(i)Any communications or notes of communications between those within the department. (I understand this to be a reference to internal communications between departmental officers.)
(ii)Communications between departmental officers and the City of Wanneroo.
(iii)File notes or communications between departmental officers in respect of the agenda reports.
(iv)Instructions given to departmental officers by Ms Burrows and Ms McGowan.
(v)Files relating to the SPC meetings.
Discovery is sought only of those documents relating to amendment 150 to the District Planning Scheme No 2 and amendments 3 and 4 to Agreed Structure Plan 80.
I consider that discovery of documents falling within those five categories should be given by the respondent. The definition of the categories requires further refinement. The parties should confer with a view to defining the categories more precisely but will be at liberty to approach the court if there are issues requiring further determinations.
There is one further subcategory of documents to be dealt with, being communications between officers of the Department of Planning and Mr Mark Wallace, of RPS Australia East Pty Ltd, in relation to the preparation of Mr Wallace's expert report filed in the State Administrative Tribunal on 3 June 2016.
Counsel for the applicant submits that there is a material difference in the views expressed by Mr Wallace in that report compared to the views expressed by him in an earlier draft report dated 20 April 2015.
I have reservations as to whether the difference in views is as significant as counsel for the applicant submits, but I accept that discovery of those communications should be given. In reaching that view, my perception is those communications may indeed be relatively limited.
I draw that conclusion from the references to the document status which appears on page 2 of Mr Wallace's report: page 339 of the affidavit sworn by Mr Van Heyningen in the substantive proceedings on 30 August 2015.
By way of a concluding observation that may assist in the conferral that is to take place to refine the categories, I am concerned to ensure that the discovery to be provided by the respondent is proportionate to the issues in this case and my preparedness to make orders for discovery should not be taken as a licence for the applicants to trawl through department files.
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